Swift v. SSD of St. Louis County

MONICA SWIFT, individually and in the interest of R.M., a minor, Plaintiff,v.SSD of ST. LOUIS COUNTY, et al., Defendants.

MEMORANDUM AND ORDER

AUDREY
G. FLEISSIG UNITED STATES DISTRICT JUDGE.

This
action is brought by Plaintiff Monica Swift on her own behalf
and on behalf of her minor child R.M. Plaintiff's claims
arise out of the denial of special education services and
disability accommodation for R.M. for approximately three and
one half years. The matter is before the Court on the motions
to dismiss Plaintiff's amended complaint, filed by each
of the four Defendants in the case: Hazelwood School District
(“Hazelwood”) (ECF No. 57); Special School
District of St. Louis County (“SSD”) (ECF No.
64); Riverview Gardens School District (“Riverview
Gardens”) (ECF No. 66); and the Missouri Administrative
Hearing Commission (“AHC”) (ECF No. 61). The
three school districts argue that the Court lacks subject
matter jurisdiction over the action due to Plaintiff's
failure to exhaust administrative remedies under the
Individuals with Disabilities Education Act
(“IDEA”), 20 U.S.C. § 1414(1), and that
Plaintiff fails to state a claim upon which relief can be
granted. The AHC argues that as a state agency, it is not a
proper party to the action. For the reasons set forth below
all four motions to dismiss will be granted.

BACKGROUND

The
amended complaint alleges the following. R.M. was born in May
2007. In 2008, she was diagnosed with schizencephaly, a
congenital brain malformation, a condition that has impaired
her daily functions and development; she was also diagnosed
with left side cerebral palsy. Plaintiff Monica Swift
(Manning) is R.M.'s mother. In May 2010, SSD developed an
Individualized Education Plan (“IEP”) for R.M.,
under the IDEA, 20 U.S.C. § 1414(d)(1)(A)(i). The IEP
called for such services as physical therapy and occupational
therapy, and R.M received these services through
pre-kindergarten.

In the
summer of 2012, Plaintiff and R.M. moved to Riverview Gardens
and Plaintiff enrolled R.M. in kindergarten in that district.
Riverview Gardens was aware that R.M. had been receiving
special education services pursuant to an IEP, but without
notice to Plaintiff, SSD and the Riverview Gardens placed
R.M. in a regular classroom where she did not receive special
education services or therapies. In September or October
2012, SSD conducted a re-evaluation of R.M.'s
development, without providing notice to Plaintiff. SSD
determined that R.M. would not qualify for special education
services after kindergarten. R.M. was kept in a regular
classroom through kindergarten and first grade, without
special education services.

In the
beginning of second grade, R.M. was bullied at school, and
after unsuccessful attempts to get Riverview Gardens to
address Plaintiff's concerns for R.M.'s safety, and
Plaintiff's “abusive” encounters with school
officials, Plaintiff transferred R.M. to a different school
in the district on November 20, 2014. At about this time
Plaintiff learned that R.M. had been removed from special
education services. Plaintiff asked SSD and the Riverview
Gardens to evaluate R.M. for an IEP and for services under
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.
§ 794, but her request was denied.

In the
summer of 2015, Plaintiff and R.M. moved to the Hazelwood
School District and Plaintiff enrolled R.M. in third grade in
that district. After R.M. attended school for one day,
Hazelwood denied her access to the school on the ground that
she did not satisfy Hazelwood's residency requirements.
Approximately three months later, Hazelwood reversed its
position and re-admitted R.M. to school. Shortly thereafter,
Plaintiff requested that SSD and Hazelwood evaluate R.M. for
special services, but the request was denied.

On
November 4, 2015, Plaintiff filed a “due process
complaint” against SSD with the Missouri State Board of
Education and requested a hearing, as provided for under the
IDEA, 20 U.S.C. § 1415(b)(1), (2) and (f). The matter
was referred to the AHC, pursuant to state law. Following a
pre-hearing conference call in December 2015, SSD and
Hazelwood evaluated R.M. in February 2016 and determined that
she was eligible for special education services (not
including occupational or physical therapy). SSD moved to
dismiss Plaintiff's complaint before the AHC, asserting
that Plaintiff's claims were mooted by SSD's February
2016 evaluation and determination. The AHC granted SSD's
motion and dismissed Plaintiff's due process complaint as
moot on March 4, 2016.

Plaintiff
alleges that the AHC “colluded with representatives of
SSD and/or their attorneys in an effort to give Hazelwood and
SSD time to cover up their improper denial of
[Plaintiff's] requests for an IEP and 504 evaluations for
R.M, ” and that “AHC staff and/or their
representatives altered the transcript of the pre-hearing
conference call to give the appearance that [Plaintiff] had
agreed to the actions taken by the [AHC], Hazelwood and SSD
following the pre-hearing conference call.” ECF No. 48
at 11.

Plaintiff
did not appeal the dismissal of her due process complaint, as
provided for by the IDEA, § 1415(g), but rather
initiated this action pro se on March 8, 2016. In her
three-count amended complaint prepared with the assistance of
appointed counsel, Plaintiff asserts claims on her own behalf
and on behalf of R.M. She asserts that by failing to provide
R.M. with a free appropriate public education
(“FAPE”) as mandated by the IDEA, from September
2012 until March 2015, and failing to provide Plaintiff with
required notice of various decisions affecting R.M.'s
education, Riverview Gardens, Hazelwood, and SSD violated
Section 504 of the Rehabilitation Act (Count I) and the IDEA
(Count II). Plaintiff alleges that the three school districts
“intentionally failed to provide R.M. a FAPE in bad
faith due to their personal dislike of [Plaintiff].”
ECF No. 23 at 13. Plaintiff asserts that as a result, R.M.
has suffered delayed educational, physical, and mental
development, and emotional distress; and that Plaintiff
herself suffered emotional distress, medical expenses, and
lost wages.

Count
III asserts a claim against SSD and the AHC under 42 U.S.C.
§ 1983, based on SSD and the AHC's alleged
violations of Plaintiff's and R.M.'s due process
rights in connection with the adjudication of Plaintiff's
due process complaint, resulting in the same harms set out in
Counts I and II, including R.M.'s delayed development and
Plaintiff's lost wages and emotional distress. Plaintiff
asks for essentially the same relief in each count, as
follows:

(1) Ordering SSD and Hazelwood to properly evaluate R.M. and
immediately implement an IEP designed to provide R.M. a FAPE
as required by law;

(2) Awarding R.M. reimbursement of the expenses Riverview
Gardens, Hazelwood, and SSD should have paid all along and
would have borne in the first instance had they not illegally
denied R.M. and Plaintiff their rights;

(3) Awarding R.M. compensatory damages for the FAPE she would
have received had Defendants ...

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